Abolition of Waqf By User Concept

Source: Supreme Court 

Why in News? 

The bench of Chief Justice BR Gavai and Justice AG Masih in the case of IN RE THE WAQF (AMENDMENT) ACT, 2025 refused to stay provisions of the Waqf Amendment Act 2025 which abolished the concept of 'Waqf by user' and upheld mandatory registration requirements for all Waqf properties. 

What was the Background of IN RE THE WAQF (AMENDMENT) ACT, 2025 Case? 

• The petition challenged the constitutional validity of the Waqf Amendment Act 2025, particularly the deletion of provisions recognizing 'Waqf by user'. 

Historical Context of Waqf Registration: 

• Right from the Waqf Act of 1923, there was a consistent requirement for registration of Waqfs. 
• The original Waqf Act of 1995 contained Section 3(r)(i) which recognized the concept of "Waqf by user." 
• "Waqf by user" allowed recognition of properties as Waqf through long, consistent public use for religious purposes, without formal dedication deeds. 

The 2025 Amendment Changes: 

• The 2025 amendment deleted Section 3(r)(i) of the original Waqf Act of 1995. 
• New amendments to Section 36 mandated registration of every Waqf and prescribed that no Waqf shall be created without execution of a Waqf deed. 
• The amendment provided a 6-month period for registration of existing unregistered Waqfs. 

Petitioners' Contentions: 

• Petitioners argued that deletion of "Waqf by user" provision would prejudicially affect several age-old Waqf properties without formal registration deeds. 
• They contended that many old Waqfs would not have deeds available and the new requirements were arbitrary and discriminatory. 
• They claimed that government would grab lands previously vested in Waqfs. 

What were the Court's Observations? 

• The Court observed that registration requirements existed consistently since 1923, stating: "If Mutawallis for a period of 102 years could not get the waqf registered, as required under the earlier provisions, they cannot claim that they be allowed to continue with the waqf even if they are not registered." 
• The Court recognized the legislature's concern about misuse of Waqf properties and government land encroachment, noting that abolishing "Waqf by User" concept cannot be considered arbitrary when aimed at preventing such misuse. 
• The Court clarified that the amendments would apply prospectively, not retrospectively, and found the 6-month registration period adequate with provisions for extensions upon showing sufficient cause. 
• The Court referenced the State of Andhra Pradesh v. Andhra Pradesh Waqf Board (2025) Case, where government lands were wrongly notified as Waqfs, supporting the legislature's concerns about misuse. 

What is Waqf? 

About: 

• Waqf is an Islamic endowment of property for religious or charitable purposes. 
• Properties dedicated as Waqf are meant to be held in perpetuity for the benefit of the community. 
• Traditionally, Waqfs could be created through formal deeds or through long-standing usage for religious purposes. 

Waqf by User Concept: 

• "Waqf by user" was a legal concept that recognized properties as Waqf based on continuous public use for religious or charitable purposes. 
• This concept did not require formal documentation or registration deeds. 
• It allowed recognition of ancient religious properties that may have lacked formal establishment documents. 

Registration Requirements: 

• Since 1923, various Waqf Acts have mandated registration of Waqf properties. 
• The requirement aimed to maintain proper records and prevent disputes over property ownership. 
• Mutawallis (administrators of Waqf properties) were responsible for ensuring registration compliance. 

What is Waqf Amendment Act, 2025? 

Key Provisions: The Waqf Amendment Act 2025 introduced several significant changes: 

Abolition of "Waqf by User": 

• Deleted Section 3(r)(i) of the original Waqf Act of 1995. 
• Eliminated the concept of recognizing Waqfs through usage alone. 
• Required formal documentation for all Waqf properties. 

Mandatory Registration and Documentation: 

• Amended Section 36 to mandate registration of every Waqf. 
• Prescribed that no Waqf shall be created without execution of a Waqf deed. 
• Provided 6-month grace period for existing unregistered Waqfs. 

Purpose of the Amendment:  

The amendment aimed to: 

• Prevent misuse and encroachment of government properties. 
• Ensure proper documentation and accountability. 
• Strengthen the legal framework governing Waqf properties. 
• Address concerns about fraudulent claims over public lands.